Tuesday, June 9, 2009

"It's up to the individual senators to endorse it. But we will go on to the next stage - convening a constituent assembly - with or without them." Thus, cavalierly proclaims Nueva Ecija Representative Rodolfo Antonino when asked about the next steps to be taken after the House of Representatives passed the much disdained HR 1109 - a resolution seeking to convene Congress into a constitutent assembly to propose amendments to the Constitution.

As if many have not spoken yet - expressing objections to HR 1109 from mild rebuke to raging outrage, that even led Jesus Is Lord (JIL) head Eddie Villanueva to call the legislators who approved the measure as terrorists and one blogger to compare them with the 9/11 terrorists - congressmen like Antonino, led by House Speaker Prospero Nograles, are still bent on their brazen attempt to introduce changes to our basic law by proceeding with their convoluted view that the House could do it alone.

As we have feared in previous postings, the majority in the House is now moving toward the most stupid thing to do by unilaterally acting to propose amendments to the Constitution. Congressman Mauricio Domogan of Baguio City minced no words when he said that the House will start with the charter change process before President Arroyo gives her State of the Nation address when Congress resumes session in July. The theory that Domogan and Antonino, the proponents' mouthpieces, are pursuing is that only a simple majority is needed to convene Congress into a constitutent assembly and that by the sheer number of those who approved HR 1109 - the gang of 174 - they already achieved sufficient votes for this purpose, thereby negating the need for the senators' votes. Yes, you got that right, these geniuses are actually saying that the Senate does not matter; in fact they intend to send HR 1109 to the individual senators, instead of the Senate as a body, as a token gesture to give them a chance to participate. So much for bicameralism. Even as now they have already amended the Constitution!

So now we can see a bifurcated process unfolding: (1) convening Congress into a constituent assembly, requiring only a simple majority and (2) proposing amendments to the Constitution, requiring three-fourths vote. According to the proponents, in both cases the senators' votes are inconsequential as the House membership alone can muster the needed votes. The grotesqueness of this is readily apparent. How can HR 1109 alone - a pure act of the Lower House - become the decision of Congress that is composed of not only the House but the Senate as well? As we have been repeatedly saying a two-chamber Congress, with limited exceptions, can only act with both Houses acting in concert. And sending HR 1109 to individual senators for their signatures will not satisfy this legal requirement even if majority of them were to sign it, since the acts of the senators could only constitute as an act of the Senate if they are acting as one body, in session assembled.

In addition, as pointed out by Fr. Joaquin Bernas, no further act is necessary to convene Congress into a constituent assembly as it is already constituted as such by virtue of Article XVII, Section 1 of the Constitution. Let me just add that Congress is automatically set in a constituent assembly mode from a purely legislative mode whenever it proposes amendments to the Constitution, even in accordance with the normal legislative route. A joint session is not even essential because what will characterize Congress as a constituent assembly is the act of introducing changes to the Constitution, for the word "constituent" refers to the power to frame a fundamental law or constitution and to introduce changes to it, as opposed to the exercise of mere legislative powers which refers to the enactment or amendment of statutes. What the Constitution only requires is that a three-fourths vote, compared to a simple majority in enacting laws, is necessary to approve the amendments and ratification by the people in a plebiscite to make them binding.

Be that as it may, nothing - legally, that is - will as yet prevent the House from proceeding. As soon as the House reconvenes, it can start proposing amendments. It can perfectly do this in accordance with Congress's power to propose amendments to the Constitution under Article XVII, Section 1. But there is a big "but." Such act would only be the sole act of the Lower House that will have to be transmitted to the Senate for its approval. Given Domogan and Antonino's statements, however, the House would proceed with step two of the bifurcated proceedings by sticking to its absurd logic that the convening of Congress into a constituent assembly (joint session is more like it) has already been approved and, therefore, the House members would be acting or representing Congress as a whole when they start deliberating and approving amendments to the Constitution in July. It's like telling the senators, "Congress is now convened into one and ready to amend the Constitution. It's up to you if you want to join or not," with the addendum, "either way, we have the votes to approve the amendments."

But why is this obssession and unwavering insistence despite the strong public outrage against charter change? How could these congressmen not heed the public sentiment and risk political suicide? It is obvious that these congressmen, a lot of them lawyers and veterans of Congress, know that without the Senate an act of the House alone cannot pass constitutional muster, and yet there is this sinister confidence to proceed. I would concede there can be a valid debate between joint and separate voting, but to say that a joint session - the vehicle to jumpstart the debate - of both Houses could be achieved by HR 1109 alone would be the height of stupidity that does not even merit the passing attention of the Supreme Court.

The majority in the House might have just stumbled and bared its ulterior motive in following and revealing an absurd theory. Domogan and Antonino's statements may have just revealed that all this fuzz about forcing a justiciable controversy is but a smokescreen for something bigger. The stupidity of their position with which they are so confident, coupled by their indifference to the public sentiment, are sending dangerous signals that something terrible is in the offing. Take note, this adamance - which is becoming exceedingly clear as deliberate - is stoking the fire of discontent and as I write this, preparations are underway for massive protests and rallies. The hubris is simply alarming. Nuff said.

“Section 16. (1). The Senate shall elect its President and the House of Representatives, its Speaker, by a majority vote of all its respective Members …“(2) A majority of each House shall constitute a quorum to do business …”

Note the controlling phrase in par. (2)--“quorum to do business.”

For the Constitution requires that, in order to convene “the Congress” to do the business of (among others) proposing amendments to, or revision of, the Constitution under Article XVII, the Presiding Officers of what constitutes “the Congress of the Philippines”--the Senate President and the Speaker of the House of Representatives--needs to first convene and call to order their respective Members, then to call the roll to determine whether or not “a majority of each House” exists to “constitute a quorum to do business” before any proposed amendment to the Constitution can even be transacted at all, so that whatever resolution may be approved during the session, joint or separate, is deemed binding as an Act of Congress.

What this means, of course, is that the act of casting the required “vote of three-fourths of all its Members”--irrespective of whether the tally is counted jointly or separately—is of no moment and cannot be regarded as binding, unless each House beforehand is declared convened and the roll call constitutes “a quorum to do business,” not only in the House of Representatives, but in the Senate as well.

Failure to secure the constitutionally required “quorum to do business” of each House invalidates any resolution passed by whatever number of votes tallied jointly or separately.

Hence, House Resolution No. 1109 proposing amendments to the Constitution cannot be regarded as a valid resolution by “the Congress of the Philippines” as required under Sec. 1 of Art. XVII, unless the Senate President convenes and calls the Senate to order and the roll call subsequently taken “constitutes a quorum to do business.”

So, even if it has mustered “a vote of three-fourths of all its Members,” the House of Representatives alone is not “the Congress” of the Philippines empowered to propose amendments to the Constitution as constitutionally defined.

Thanks for the additional information domingoarong. Those principles are so simple and elementary that I am inclined to believe these congressmen - especially the lawyers and veterans among them - surely know them, but are nonetheless sticking to their twisted position that leads me to believe they are intentionally arousing the people to rise in opposition. They are intentionally providing the catalyst for a national crisis.

The real crisis begins when the House, claiming it is representing "Congress", forwards the draft of the provisions of the amendment or revision to Comelec. Whether the Comelec sends it into a plebiscite or not, is a matter for the Comelec alone to decide. BUT it will have to get a law authorizing it and a corresponding appropriation for such exercise from Congress - again, it must include the Senate.

They have already awarded the counting machine contract to Smartmatic yesterday and no outstanding funds are available for this purpose, if someone is thinking about fund realignment.

Ony, you could be right that money is what drives them and in so saying, these congressmen are merely instruments, puppets if you will, doing the bidding of Malacañang who could only be the interested party.

But whether it is money or not that drives them, adamantly pursuing a clearly stupid theory on cha-cha is obviously putting the nation in unrest. And without giving credit to them, these congressmen know their theory is wrong, but they are nevertheless pursuing it.

Sometimes a coincidence isn't a coincidence at all. There's too much smoke coming from the HR...there has got to be a fire feeding it somewhere. But it's quite clear where the fire is and who started it. Let's hope that the good Filipino people can find the source and douse it with enough water.

jcc34, while we are given the opportunity to accept or reject in a plebiscite whatever amendments are proposed to the Constitution, the disregard by the proponents of HR 1109 of the constitutional process - excluding the Senate - should be of immediate concern. In fact, how could we even talk of a plebiscite when legally there is nothing to subject to this process because in the first place the propoed amendments have been illegaly made?

Come on, jcc34, any person who knows his/her lessons in civics or intro to poli sci would know that a bicameral legislature acts with both houses of Congress concurring. How could a PURELY House resolution convene Congress into joint session without Senate concurring? There is a big difference between flaunting the law and testing it because of uncertainty. I agree there could be valid disagreement on the modality of voting, but that becomes relevant only if and when Congress comes into joint session. As it is, congressmen are claiming the 174 votes on HR 1109 already gave Congress - not the House alone! - the authority to act in joint session.

you take the position of the senate that art. xvii is about congress convening separately or jointly and voting 3/4 of its house to constitute themselves as constituent assembly.

the house simply reads art. xvii as 3/4 of congress, nothing is mentioned about congress sitting jointly or separately.

if the total members of the house and the senate is 289, 3/4 of the number is 217. it does not matter whether all of them are congressmen or some of them are senators, as long as it has the magic number 217.

the house in effect said that if you disagree with this position, "Go To Court". Is tha not an indication that it is a proponent of the rule of law?

The House is of the view that when Congress convenes as a con-ass, it must do so as one body, in joint session. This is what HR 1109 hopes to accomplish. So we are not talking about cha-cha yet and the application of the 3/4 vote.

As I have repeatedly pointed in my previous postings, the House wants a joint session to force the issue of joint voting, because only when the two houses sit together can joint voting apply as obviously the word "joint" means together.

But what the House, particularly Congressmen Domogan and Antonino, is saying right now is that HR 1109 alone had already accomplished the objective of convening Congress into a con-ass. The obvious falacy of this position, of course, is that HR 1109 is but an action of the House and for it to become an act of Congress, the Senate must agree by adopting a similar resolution or concurring with 1109. In other words, as pointed by domingoarong here, Senate must consider the matter in its session, there being a quorum, and approve the convening of Congress into joint session by mere simple majority vote. This is how a bicameral Congress goes about its business. But the House, in clear and wanton disregard of this elementary rule, wants to proceed under the belief that Congress is now officially convened as a con-ass (in joint session). Is this being a proponent of the rule of law? Can you say that one is a proponent of the rule of law by violating it and challenging those against it to bring a suit in court?

NOW, THEREFORE, BE IT RESOLVED,THAT THE MEMBERS OFCONGRESS BE CONVENED FOR THE PURPOSE OF PROPOSINGAMENDMENTS TO, OR REVISION OF THE CONSTITUTION UPON A VOTEOF THREE-FOURTHS OF ALL ITS MEMBERS AND THAT UPON ITS BEINGCONVENED SHALL ADOPT ITS RULES OF PROCEDURES THAT SHALLGOVERNITS PROCEEDINGS.

Nowhere did it say that 3/4 of Congress means 3/4 of the Senate and 3/4 of the House.

The house thinks that it can convene itself and can propose amendments as long as 3/4 of the members voted for the amendments.

jcc, HOR hasn't transmitted yet HR 1109 to the Senate for its concurrence. That's how bicameralism works and it's even stipulated in the HOR's Rules (be it a Bill or simply a Resolution). Until the Senate concurs there is no Congress to speak of yet.

The required 3/4 votes whether to be done jointly or separately can be tackled when Congress is already convened.

(1) Sec. 19, Art.VII--"He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress."

(2) Par (1), Sec. 1, Art. XVII—"Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members."

(3) Par. 4, Sec. 28, Art. VI. “4. No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of the Congress.”

(4) Sec. 3, Art. XVII. “The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.”

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In No. 3, if we consider Antonino’s point of view, a law granting tax exemption can be passed by 50% plus 1 of the number comprising the Members of the Congress.

jcc, did you notice the wording of the resolution when it says "MEMBERS OF CONGRESS BE CONVENED . . ."? Now, how can the House alone possibly convene Congress? Clearly, there would have to be a counter-part resolution by the Senate.

manilabaywatch, indeed it seems puzzling why these congressmen are so adamant in maintaining their position. Could it be that they know something we don't know? That they are precisely doing this to galvanize the people into greater public outrage and unrest to justify the imposition of an emergency rule? Let's take a look at the factors: as I have mentioned in my article, (a) a lot of these congressmen are lawyers or if not, veteran congressmen, and they sure as hell know how bicameralism works - and yet they disregard it; and (b) there is an undeniable public outrage against what they did - and yet they continue to be insensitive, in fact, Nograles said they will still proceed despite the protests, purportedly to bring a test case to the SC; (c) they know Senate won't go along with them - and yet they are still unfazed.